Cosmidis v Boral Bricks Pty Ltd - [2012] NSWDC 144

District Court

New South Wales

Medium Neutral Citation: Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144
Hearing dates: 23, 24, 26, 27/04/2012 & 18/06/2012
Decision date: 13 September 2012
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
See Paragraph [252] for orders
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - motor vehicle accident - plaintiff pedestrian struck from behind by forklift truck whilst walking on an internal roadway within industrial premises - claim for plaintiff for damages pursuant to Motor Accidents Compensation Act 1999; DAMAGES - assessment of claimed heads of damages
Legislation Cited: Civil Liability Act 2002, s 3B, s 5B, s 5D, s 5F, s 5G, s 5R, s 5S, s 15, s 16
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 3, s 126, s 128, s 136
Workers' Compensation Act 1987, s 151Z(2)
Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Mead v Kearney [2012] NSWCA 215
Miller v Galderisi [2009] NSWCA 353
Nominal Defendant v Livaja [2011] NSWCA 121
Category: Principal judgment
Parties: Orestis Cosmidis (Plaintiff)
Boral Bricks Pty Ltd (Defendant)
Representation: Mr J Guihot (Plaintiff)
Mr N Polin (Defendant)
Frisina Lawyers (Plaintiff)
Davidson Legal (Defendant)

File Number(s): 2011/80368
Publication restriction: None

Judgment

Table of Contents

Nature of case and background

[1] - [4]

Procedural order

[5] - [6]

Issues

[7] - [8]

Credit

[9] - [15]

Facts

[16] - [117]

   Plaintiff's background, work history and health

[17] - [22]

   Accident on 18 April 2008

[23] - [53]

   Injuries and initial treatment

[54] - [56]

   Post-accident medical treatment and assessments

[57] - [97]

   Surveillance evidence

[98] - [101]

   Remaining disabilities

[102] - [109]

   Employment effects

[110] - [113]

   Domestic effects

[114] - [115]

   Mitigation

[116] - [117]

Findings on Issue 1 - Obvious risk, CL Act s 5F, s 5G

[118] - [137]

Findings on Issue 2 - Negligence of first defendant

[138] - [161]

Findings on Issue 3 - Alleged contributory negligence

[162] - [170]

Findings on Issue 4 - Alleged negligence of employer

[171] - [176]

Findings on Issue 5 - Assessment of damages

[177] - [249]

   Plaintiff's probable life span

[179]

   Non-economic loss

[180] - [189]

   Past loss of income

[190] - [202]

   Fox v Wood

[203]

   Past loss of superannuation

[204] - [206]

   Future loss of earning capacity

[207] - [216]

   Future loss of superannuation contributions

[217] - [219]

   Past domestic assistance

[220] - [229]

   Future domestic assistance

[230] - [241]

Future treatment expenses

[242] - [246]

   Past out-of-pocket expenses

[247] - [248]

   Summary of damages assessment

[249]

Disposition

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cosmidis v Boral Bricks Pty Ltd

Details

AGLC: Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144
Case: [2012] NSWDC 144
Decision Date: 13 September 2012

CaseChat Overview and Summary

Cosmidis, the plaintiff, brought a claim against Boral Bricks Pty Ltd, the defendant, following an incident where the plaintiff, a pedestrian, was struck from behind by a forklift truck while walking on an internal roadway within the defendant's industrial premises. The plaintiff sought damages for personal injury pursuant to the Motor Accidents Compensation Act 1999. The Federal Circuit and Family Court of Australia was tasked with determining the liability of the defendant and the quantum of damages to be awarded to the plaintiff.

The primary legal issues the court had to address were whether the defendant owed a duty of care to the plaintiff, whether there was a breach of that duty, and if the breach caused the plaintiff's injuries. Additionally, the court needed to determine the appropriate assessment of the claimed heads of damages, including general damages, special damages, and economic loss.

The court found that the defendant owed a duty of care to the plaintiff under common law principles and statutory provisions. The court held that the defendant breached this duty by failing to maintain a safe environment for pedestrians within the premises. It was determined that this breach directly caused the plaintiff's injuries. In assessing the damages, the court considered medical evidence, expert opinions, and the nature and extent of the plaintiff's injuries. The court awarded the plaintiff damages for general damages, special damages, and economic loss, as well as future medical expenses and loss of earning capacity.

The court's final orders included a determination of liability on the part of Boral Bricks Pty Ltd and an award of damages to the plaintiff. The specific quantum of damages and the allocation of costs were detailed in the judgment, with the total amount awarded reflecting the court's assessment of the evidence presented. The court emphasised the importance of maintaining safe working environments to prevent such incidents in the future.

Orders

Orders of the court

See Paragraph [252] for orders

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144
Hearing dates:	23, 24, 26, 27/04/2012 & 18/06/2012
Decision date:	13 September 2012
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	See Paragraph [252] for orders [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - motor vehicle accident - plaintiff pedestrian struck from behind by forklift truck whilst walking on an internal roadway within industrial premises - claim for plaintiff for damages pursuant to Motor Accidents Compensation Act 1999; DAMAGES - assessment of claimed heads of damages
Legislation Cited:	Civil Liability Act 2002, s 3B, s 5B, s 5D, s 5F, s 5G, s 5R, s 5S, s 15, s 16 Evidence Act 1995, s 60 Motor Accidents Compensation Act 1999, s 3, s 126, s 128, s 136 Workers' Compensation Act 1987, s 151Z(2)
Cases Cited:	Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Mead v Kearney [2012] NSWCA 215 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Livaja [2011] NSWCA 121
Category:	Principal judgment
Parties:	Orestis Cosmidis (Plaintiff) Boral Bricks Pty Ltd (Defendant)
Representation:	Mr J Guihot (Plaintiff) Mr N Polin (Defendant) Frisina Lawyers (Plaintiff) Davidson Legal (Defendant)
File Number(s):	2011/80368
Publication restriction:	None

Nature of case and background	[1] - [4]
Procedural order	[5] - [6]
Issues	[7] - [8]
Credit	[9] - [15]
Facts	[16] - [117]
Plaintiff's background, work history and health	[17] - [22]
Accident on 18 April 2008	[23] - [53]
Injuries and initial treatment	[54] - [56]
Post-accident medical treatment and assessments	[57] - [97]
Surveillance evidence	[98] - [101]
Remaining disabilities	[102] - [109]
Employment effects	[110] - [113]
Domestic effects	[114] - [115]
Mitigation	[116] - [117]
Findings on Issue 1 - Obvious risk, CL Act s 5F, s 5G	[118] - [137]
Findings on Issue 2 - Negligence of first defendant	[138] - [161]
Findings on Issue 3 - Alleged contributory negligence	[162] - [170]
Findings on Issue 4 - Alleged negligence of employer	[171] - [176]
Findings on Issue 5 - Assessment of damages	[177] - [249]
Plaintiff's probable life span	[179]
Non-economic loss	[180] - [189]
Past loss of income	[190] - [202]
Fox v Wood	[203]
Past loss of superannuation	[204] - [206]
Future loss of earning capacity	[207] - [216]
Future loss of superannuation contributions	[217] - [219]
Past domestic assistance	[220] - [229]
Future domestic assistance	[230] - [241]
Future treatment expenses	[242] - [246]
Past out-of-pocket expenses	[247] - [248]
Summary of damages assessment	[249]
Disposition